Member of the Executive Council for Education in the Northern Cape and Others v School Governing Body: Northern Cape and Others (Leave to Appeal) (1981/2015) [2016] ZANCHC 14 (12 February 2016)

IN THE HIGH COURT OF SOUTH AFRICA

(Northern Cape High Court, Kimberley)

Reportable: NO

Circulate to Judges:YES

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

CASE NO: 1981/2015

DATE HEARD: 09/02/2016

DATE DELIVERED: 12/02/2016

In the matter between:

THE MEMBER OF THE EXECUTIVE

COUNCIL FOR EDUCATION IN THE

NORTHERN CAPE

1st Applicant

THE HEAD OF THE DEPARTMENT OF

EDUCATION IN THE NORTHERN CAPE

PROVINCE

2nd Applicant

THE DISTRICT DIRECTOR: FRANCES BAARD

DISTRICT OF THE DEPARTMENT OF

EDUCATION IN THE NORTHERN CAPE

3rd Applicant

and

SCHOOL GOVERNING BODY: NORTHERN CAPE

1st Respondent

NORTHERN CAPE HIGH SCHOOL, KIMBERLEY 2nd Respondent

ANNELIE FOURIE

3rd Respondent

KAREN RHEEDER 4th Respondent

CARMEN TAYLOR

5th Respondent

MILTON VAN HEERDEN

6th Respondent

WINNIFRED VAN WYK 7th Respondent

LUKE AIYER 8th Respondent

MELANIE CLARKE 9th Respondent

PETRUS DU TOIT 10th Respondent

MOGAMAT FREDERICKS 11th Respondent

CHARLES HENDRICKS 12th Respondent

MZIMKHULU JELE 13th Respondent

SALMON ROBERTS 14th Respondent

PETER MAMABOLO 15th Respondent

ALDRIN MASDOLL 16th Respondent

BENEDICT MODISE 17th Respondent

VINCENT NOSI 18th Respondent

MKULULEKO NQUMASHE 19th Respondent

MARILDIA PANKER 20th Respondent

THUBEKA TAWO

21st Respondent

ELTONJON TOPKIN 22nd Respondent

FAIZA VAN DER MERWE

23rd Respondent

DAVID VAN DER MERWE 24th Respondent

LAWRENCE VAN ROOYEN 25th Respondent

In re

SCHOOL GOVERNING BODY: NORTHERN CAPE

1st Applicant

NORTHERN CAPE HIGH SCHOOL, KIMBERLEY 2nd Applicant

ANNELIE FOURIE 3rd Applicant

KAREN RHEEDER 4th Applicant

CARMEN TAYLOR 5th Applicant

MILTON VAN HEERDEN 6th Applicant

WINNIFRED VAN WYK 7th Applicant

LUKE AIYER

8th Applicant

MELANIE CLARKE

9th Applicant

PETRUS DU TOIT 10th Applicant

MOGAMAT FREDERICKS 11th Applicant

CHARLES HENDRICKS 12th Applicant

MZIMKHULU JELE 13th Applicant

SALMON ROBERTS 14th Applicant

PETER MAMABOLO 15th Applicant

ALDRIN MASDOLL 16th Applicant

BENEDICT MODISE 17th Applicant

VINCENT NOSI 18th Applicant

MKULULEKO NQUMASHE 19th Applicant

MARILDIA PANKER 20th Applicant

THUBEKA TAWO 21st Applicant

ELTONJON TOPKIN 22nd Applicant

FAIZA VAN DER MERWE 23rd Applicant

DAVID VAN DER MERWE 24th Applicant

LAWRENCE VAN ROOYEN 25th Applicant

NORTHERN CAPE

1st Respondent

PROVINCE 2nd Respondent

EDUCATION IN THE NORTHERN CAPE

3rd Respondent

Coram: Olivier J

JUDGMENT : APPLICATION FOR LEAVE TO APPEAL

Olivier J:

[1.] The third to eighth, tenth to fourteenth and sixteenth to twenty-fifth respondents are all parents who had applied for the admission of their children, as learners, to the second respondent, the Northern Cape High School (“the school”). The first respondent is the School Governing Body of the school.

[2.] The third applicant, the District Director (Francis Baard District) of the Department of Education, Northern Cape, had refused to admit the children to the school and the internal appeals against those decisions had been dismissed by the first applicant, the Member of the Executive Council for Education, Northern Cape Province. The second applicant is the Head of the Department of Education, Northern Cape Province.

[3.] On 4 December 2015 I ordered that, pending the finalisation of an application[1] by the respondents for the review of those decisions and of the decisions to dismiss the appeals, as well as for a (final) order that they be admitted to the school should they so wish, the children be admitted to the school and that the third respondent during that period be prohibited from filling the vacancies that had resulted from the refusal of the initial applications for the admission of the learners. The applicants were ordered to pay the costs of the first part of the application, in other words, the part in which the interim relief was granted[2].

[4.] The applicants now apply for leave to appeal against those orders. The grounds of appeal are set out in more than 50 paragraphs and sub-paragraphs, the contents of most of which amount to argument, rather than a concise statement of grounds of appeal[3].

[5.] Before considering any of the grounds of appeal that can be discerned from the notice, it has to be considered whether the orders made by this court on 4 December 2015 are indeed appealable.

[6.] For an order or decision of this court to be appealable to the full bench of this court or to the Supreme Court of Appeal it “must be final in effect and not open to alteration by the court of first instance; it must be definitive of the rights of the parties and … it must have the effect of disposing of at least (a) substantial portion of the relief claimed in the main proceedings”[4].

[7.] These requirements or principles, however, “are neither exhaustive nor cast in stone”[5] and the overriding requirement is that it has to be in the interests of justice to allow an appeal against orders which “have no final effect and that are susceptible to reconsideration … when final relief is determined”[6].

[8.] “(W)hat the interests of justice require depends on the facts of each particular case”[7]. An important factor would be “whether irreparable harm would result if leave to appeal is not granted”[8].

[9.] The form of the orders of 4 December 2015 is clearly that they are to apply only until the review is decided and on the face of it they would have only interim effect, but the question would remain whether they nevertheless are final in effect[9].

[10.] In paragraph 11 of the notice of application for leave to appeal the submission is indeed made that “Although this order is called an interim relief (sic), it has the effect of a final order, therefore the applicants are entitled to appeal same”.

[11.] The effect of the orders of 4 December 2015 are that, should the decisions of the third and first applicants not be set aside on review, the temporary “admission” of the learners to the school will lapse, as will the temporary prohibition of filling the vacancies.

[12.] Whether the particular learners would in such an event be allowed to stay on in the school or not, is neither in form nor in effect determined by the orders of 4 December 2015. Prayer [2] of part B of the notice of motion is, as already indicated, a prayer for an order that the learners be admitted to the school, presumably finally, should they so wish.

[13.] Counsel for the applicants argued that, in the event of the respondents failing in their application for review, it would not be “feasible” or “practical” to have these learners removed from the school, and that the interim relief is therefore indeed final in effect. While it may be argued that it would be undesirable to do so, there is no evidence to the effect that it would not be possible. In any event, and as already pointed out, the question whether the learners should stay on in the school after the expiry of the interim order is the subject of the application in part B of the notice of motion. The particular prayer in part B is simply for the (final) admission of the learners for the 2016 academic year. It is not qualified by any reference to the result of the application for the review of the decisions made by the first and third applicants.

[14.] In Minister of Home Affairs and others v Johnson and others; Minister of Home Affairs and another v Delorie and others[10] the court a quo had granted orders suspending the operation of declarations that the respondents were “undesirable persons” who could not return to South Africa, and of the directive in terms of which those declarations had been made, and allowing them to return to the country pending the review of the directive and of the declarations. On appeal it was held that the orders were “only temporary in nature and did not finally dispose of any factual or legal issues” and that, because the orders were directed at the two respondents only, it would not be in the interests of justice to entertain the appeal[11].

[15.] The interim orders in the present matter are in my view also clearly temporary in nature, and the relief is also limited to the parents and learners in the present matter and to the vacancies resulting from the non-admission of those particular learners.

[16.] The review court will, in effect and in considering the relief sought in prayer [2] of part B of the notice of motion, be reconsidering the temporary or provisional admission of the particular learners, and that court will, in granting or refusing that relief, in effect either confirm or discharge the interim orders.

[17.] The orders are also clearly not definitive of any of the rights concerned here. They do not dispose of any part of the relief claimed in part B of the main application.

[18.] Keeping in mind that it is normally regarded as not in the interests of justice “to hear appeals against interim orders that have no final effect and that in any event are susceptible to reconsideration by a Court when the final relief is determined”[12], the question would then be why this case should be an exception and whether the interests of justice in this case require such a piecemeal approach[13].

[19.] On the evidence there is no indication that the present applicants will suffer any prejudice at all, let alone irreparable prejudice, should the interim orders remain in place pending the application for the relief sought in part B of the notice of motion. No submission to this effect can in any event be discerned from the contents of the notice of application for leave to appeal.

[20.] In the notice it is contended that, in making the interim orders, this court encroached upon the terrain of the applicants. I disagree. The orders are, as already pointed out, only temporary in effect and they are not definitive of the rights of any of the applicants. In this regard the facts of the present matter are entirely distinguishable from those in the National Treasury case referred to above[14], where there was clear evidence “that the impact of the temporary restraining order (was) immediate, on-going and substantial”[15]. There is simply no evidence to this effect in the present matter.

[21.] In deciding an appeal against the interim orders on the grounds advanced in the notice of application for leave to appeal “the appellate court would in effect usurp the role of the review court”, something which should be avoided as far as possible[16].

[22.] In my view the interim orders in the present matter are therefore not appealable, which makes it unnecessary to consider the grounds of appeal in any detail.

[23.] There is no reason why costs should not follow the result and the following order is therefore made:

THE APPLICATION FOR LEAVE TO APPEAL IS DISMISSED WITH COSTS.

______________________

C J OLIVIER

JUDGE

NORTHERN CAPE DIVISION

For the Applicants:

ADV T C TSHAVUNGWA

Instructed by:

MJILA & PARTNERS

For the Respondents:

ADV J G VAN NIEKERK SC

Instructed by:

ENGELSMAN MAGABANE INC.

[1] Part B of the notice of motion.

[2] Part A of the notice of motion

[3] Compare S v Mapani 2012 JDR 0884 (Nm); Uniform Rule 62(3).

[4] Compare International Trade Administration Commission v SCAW South Africa (Pty) Ltd and Others 2010 (5) BCLR 457 (CC) para [48]

[5] Ibid, para [50]

[6] Ibid, para [50]; Philani-Ma-Afrika v Mailula 2010 (2) SA 573 (SCA) para [20].

[7] S v Western Areas Ltd and Others 2005 (5) SA 214 (SCA) para [28].

[8] Machele and Others v Mailula and Others 2010 (2) SA 257 (CC) para [24]; Compare International Trade Administration Commission v SCAW South Africa (Pty) Ltd and Others, supra, para [55]

[9] Compare Jacobs and Others v Baumann NO and Others 2009 (5) SA 432 (SCA) para [9]

[10] 2015 (6) BCLR 707 (CC).

[11] Ibid, para [7].

[12] National Treasury and others v Opposition to Urban Tolling Alliance and others (Road Freight Association as applicant for leave to intervene) 2012 (11) BCLR 1148 (CC).

[13] Compare International Trade Administration Commission v SCAW South Africa (Pty) Ltd and Others, supra, para [50].

[14] Paragraph [19] and footnote 10 above.

[15] National Treasury and others v Opposition to Urban Tolling Alliance and others (Road Freight Assocation as applicant for leave to intervene), supra, para [27].

[16] Ibid, para [26]